Article 125 of the former Soviet Union's 1936 Constitution purported to guarantee Soviet citizens' freedom of speech. But as Stalin's law courts never enforced those rights, if you ever dared to speak freely on public issues of the day, you were sent to the gulag in one of Andrei Vyshinsky's infamous show trials. Stalin's judges were knowing accomplices to this judicial travesty, never failing to find the facts Vyshinsky needed to hear.
Paradoxically, the Soviet Union was often one of the first countries to sign international human rights treaties. By way of example, the Soviets signed the International Covenant on Civil and Political Rights in 1968, ratifying it in 1972; the U.S. didn't ratify it until 1992. [source] But as is equally well-known, a Soviet signature on a human rights treaty wasn't worth the Bic they used to sign it.
And, truth be told, the United States' record isn't much better.
Article VI of the Constitution states, in pertinent part:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
If this majestic document is to have any meaning, when our country signs a human rights treaty, it is supposed to have the full force and effect of law. But as was the case in the old Soviet Union, theory is almost unrecognizable when compared to the reality on the ground.
The International Bill of Rights: A Dissenting View?
Taken together, the UN Covenant Against Torture ("CAT") and the International Covenant on Civil and Political Rights ("the ICCPR") are integral parts of what is described as the International Bill of Human Rights, purporting to govern the relationship between contracting States and their citizens. The United States has signed and ratified both (in 1994 and 1992, respectively) ... but only after a fashion, warranting that domestic law is in full compliance with these treaties.
While this practice might seem disingenuous and even sinister on its face, it is prudent and necessary under our constitutional system. As the Constitution expressly states that treaties become the law of the land and thus, enjoy a status equal to the Bill of Rights, it would not do for our representatives to enter into a treaty which, by its terms, abrogates or seriously diminishes protections against improper government action enshrined in the Bill of Rights. As such, our country routinely signs treaties with the caveat that they aren't actually binding.
Of course, the problem with this practice is that our signature is only as good as the warranty that our domestic law is in full compliance with the treaty as signed and in turn, the courts' willingness to honor our representatives' solemn representations. It is here where our scofflaw courts (and specifically, the Bork/Scalia wing) have failed us spectacularly.
America's Legal Obligation To Honor International Law....
"International law is a part of our law," The Paqueete Habana, 175 U.S. 677, 700 (1900), and has been since the dawn of the Republic. E.g., Pennington v. Coxe, 6 U.S. 33 (1804). International human rights law is consistently recognized in our courts, Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), having been granted the status of federal common law. Filartiga v. Pena-Irala, 630 F.3d 876 (2d Cir. 1980), but see, Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984) (majority opinion and concurrence by Judge Robert Bork; dissenting opinion). The Supreme Court reaffirmed this principle again in Roper v. Simmons, 543 U.S. 551 (2005), in finding the juvenile death penalty unconstitutional.
Much like our domestic common law, international law evolves over time. See, e.g., Ware v. Hylton, 3 U.S. 199, 223-24 (1796) (distinguishing between "ancient" and "modern" international law). By way of example, human slavery was perfectly legal and widely practiced when our nation was formed; today, it is universally outlawed. Even if some rogue country were to refuse to sign a covenant outlawing the practice, it would still be illegal to engage in it under the doctrine of jus cogens: certain principles are so fundamental that no derogation from them is permissible. This concept is enshrined in Article 53 of the Vienna Convention on Treaties:
Treaties conflicting with a peremptory norm of general international law ("jus cogens")
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. ... [A] peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.
Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331 (entered into force Jan. 27, 1980), art. 53.
Although the United States is not a signatory to the Convention, it is an oversight with little practical import. "It has been a maxim of statutory construction since the decision in Murray v. The Charming Betsy, 2 Cranch 64, 118 (1804), that 'an action of congress ought never be construed to violate the law of nations, if any other possible construction remains.'" Weinberger v. Rossi, 456 U.S. 25, 32 (1982). As the Ninth Circuit explains, this is done "out of respect for other nations.'" United States v. Thomas, 893 F.2d 1066, 1069 (9th Cir. 1990). But in light of recent events, it can no longer be seen as merely an abstract point of national honor: If we can justly make war on the sovereign nation of Iraq simply because it refused to honor its international commitments, we disregard our own international commitments only at our peril.
...How Our Courts Have Abandoned It in the Human Rights Arena...
Historically, the incorporation of international law into our law has always prevented us from becoming a rogue nation. And when it comes to the business of business, American courts have always been all business. For example, the Vienna Convention is as binding in our courts as if we had actually signed it. The Eleventh Circuit explains: "Although the United States is not a party to the Vienna Convention, it regards the substantive provisions of the Vienna Convention as codifying the international law of treaties." Aquamar, S.A. v. Del Monte Fresh Produce N.A., Inc., 179 F.3d 1279, 1296 n.40 (11th Cir. 1999) (quotation omitted); see generally, Chubb & Son, Inc. v. Asiana Airlines, 214 F.3d 301 (2d Cir. 2000). But when it comes to international human rights law, all bets are off.
In the topsy-turvy world of America's courts, the treaties we do sign can have less value than the ones we don't. The most classic case in point is the ICCPR ... which, ironically, is modeled after our own Bill of Rights. While the ICCPR declares that "every citizen shall have the right and the opportunity ... [t]o take part in the conduct of public affairs, directly or through freely chosen representatives," some four million of our fellow citizens continue to be deprived of that right. As Judge Torruella of the First Circuit observes:
Those born in Puerto Rico have since 1917 been born citizens of the United States. The right to vote is a fundamental right inherent in citizenship. It is fundamental because it is preservative of all other rights by adding the validating imprimatur of the ballot box to the business of government. Furthermore, it has been considered a fundamental right since at least 1886, and repeatedly thereafter in a variety of circumstances, being variously described as "a right at the heart of our democracy," and as being "too important in our free society to be stripped of judicial protection."
De la Rosa v. United States, No. 04-2186 (1st Cir. Oct. 14, 2004) (per curiam; Torruella, J, dissenting).
The de la Rosa case precipitates an almost unfathomable absurdity. We fought a revolution against an oppressive colonial master who governed us without our consent ... but we deprive some four million of our own citizens the right to elect even a single voting representative to a federal government that exercises almost absolute power over them. And to compound this outrage, this act of tyranny is done in blatant disregard of our own solemn word as a nation, and peremptory norms of international law.
Our failure to honor international commitments we made in the ICCPR are ones we can only discard to our eternal shame, for it represents a stunning vindication of the "American Experiment": the world's accord with those radical principles our ancestors so proudly declared centuries ago. That all men are endowed by their Creator with certain inalienable "rights." That no man is above the law, and every man is answerable to the law. That for every infringement of these rights, there is a remedy. America has led the way to freedom -- and the world has followed. Can we now proclaim to those who still yearn to be free from the depredations of the slavers of the Sudan or the other surviving butchers of Baghdad, "Hey, folks, America was only kidding?"
Guess what, campers? We really were kidding.
...And How This Hits YOU Where You Live.
Unless you live in Puerto Rico, you might not believe that this is your problem ... but in fact, it affects you every day. The effects are subtle, but profound.
The great 18th century English legal commentator, Sir William Blackstone wrote in his Commentaries that "it is a settled and invariable principle in the laws of England, that every right, when with-held, must have a remedy, and every injury it's proper redress." 3 William Blackstone, Commentaries * 109. After all, if the government can do anything it wants to you with absolute impunity, you don't have any rights at all. Chief Justice Marshall acknowledged this fact in the landmark case of Marbury v. Madison:
The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. ...
The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.
Marbury v. Madison, 5 U.S. 137, 163 (1803).
Early American courts took that logic to heart, finding that to have a clear and undeniable right without a remedy is "a monstrous absurdity in a well-organized government," Kendall v. United States, 37 U.S. 524, 624 (1838), and that if "there be an admitted wrong, the courts will look far to supply a remedy." DeLima v. Bidwell, 182 U.S. 1, 176-77 (1901). Our courts have even fabricated remedies from whole cloth where none existed. E.g., Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Adopted in 1966, the ICCPR was intended to protect individual citizens whose human rights have been violated by their governments. Accordingly, the most significant provision of the ICCPR is Article 2, as it formally abolishes the principle of sovereign immunity -- the quaint medieval idea that "the King can do no wrong":
- Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
- Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
- Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.
The rest of the world followed our lead, ratifying the ICCPR in less than ten years. Some 120 countries have become signatories, with the only notable exceptions being China, Pakistan, and Saudi Arabia. What's more, the rule that a State government is liable for injuries to the human rights of its citizens has attained the status of jus cogens international law, as evidenced not only by the ICCPR, but a long strand of Commonwealth (beginning with Maharaj v Attorney-General of Trinidad & Tobago (No. 2) [1979] AC 385) and more recent European Union (Case C-224/01, Kobler v Austrian Republic [2003] 3 CMLR 28) precedent. Importantly, these cases hold that it is a claim in public law, as opposed to one sounding in tort, along the line of reasoning offered in Carey v. Piphus, 435 U.S. 247 (1978) (procedural due process violation a separate and distinct injury of constitutional magnitude).
Now, here's where things get really odd.
In 1992, the United States Senate finally got around to ratifying the ICCPR, with the caveat (called a declaration) that it was not self-executing. During the ratification debate, Sen. Daniel Moynihan (D-NY) observed, "[e]ven though [the ICCPR] is not self-executing, these will now become binding obligations of the United States." 138 Cong. Rec. S4,783 (statement of Sen. Moynihan). Yet, the Senate asserted that the declaration was meant to "clarify that the Covenant will not create a private cause of action in U.S. Courts." S. Exec. Rep., No. 102-23, at 15 (1992) (as quoted in Wikipedia). This, in turn, begs an obvious question: How can a treaty, the sole purpose of which is to protect the rights of the individual, impose a binding obligation on the United States without creating a private cause of action?
Bottom line, it really can't. What it does do is impose an affirmative obligation of a legally binding character on the United States government to effectuate its provisions -- a duty it owes to the world community, to conform its laws to the ICCPR's requirements. This duty translates into a concomitant obligation upon Congress to pass remedial legislation and the courts, to interpret pre-existing law in a manner consistent with international law (under the theory that, if Congress doesn't change the law to conform with the treaty, it is warranting that pre-existing law is in full compliance).
Unfortunately, the Supreme Court decided to rewrite the law in its own image -- most notably, in the case of federal whistle-blower Ernest Fitzgerald.
Nixon's Revenge: The Wreck of Ernest Fitzgerald
With all due respect to our own Jesselyn Radack, the canary in the coal mine died twenty-five years ago. No one even noticed.
Ernest Fitzgerald was a middle manager for the Air Force who, instead of exercising the better part of valor, informed Congress as to questionable cost overruns on a Defense Department weapons project. As appears customary in those situations, he was fired at what appears to have been Richard Nixon's earliest opportunity. He sued Nixon for lost wages, and the case went to the Supreme Court. And in a 5-4 decision in which the deciding vote was cast by newly-minted Associate Justice Sandra O'Connor, the Court declared that the President was indeed above the law. Justice Blackmun cut to the chase in his dissent:
For me, the Court leaves unanswered his unanswerable argument that no man, not even the President of the United States, is absolutely and fully above the law. Until today, I had thought this principle was the foundation of our national jurisprudence. It now appears that it is not.
Nixon v. Fitzgerald, 457 U.S. 731, 797-98 (1982) (Blackmun, J., dissenting; citations omitted).
The main dissent, authored by Kennedy nominee Byron White and authorized by the then-dwindling "liberal" wing of the Court, raises concerns which seem absolutely prescient:
A President, acting within the outer boundaries of what Presidents normally do, may, without liability, deliberately cause serious injury to any number of citizens even though he knows his conduct violates a statute or tramples on the constitutional rights of those who are injured. Even if the President in this case ordered Fitzgerald fired by means of a trumped-up reduction in force, knowing that such a discharge was contrary to the civil service laws, he would be absolutely immune from suit. By the same token, if a President, without following the statutory procedures which he knows apply to himself as well as to other federal officials, orders his subordinates to wiretap or break into a home for the purpose of installing a listening device, and the officers comply with his request, the President would be absolutely immune from suit. He would be immune regardless of the damage he inflicts, regardless of how violative of the statute and of the Constitution he knew his conduct to be, and regardless of his purpose. ...
The principle that should guide the Court in deciding this question was stated long ago by Chief Justice Marshall: "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." Much more recently, the Court considered the role of a damages remedy in the performance of the courts' traditional function of enforcing federally guaranteed rights: "Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty." To the extent that the Court denies an otherwise appropriate remedy, it denies the victim the right to be made whole and, therefore, denies him "the protection of the laws."
In spinning their toxic web of official immunity, our courts haven't just shredded human rights treaties; they have eviscerated our entire Bill of Rights. After all, if everyone who matters (judges, prosecutors, Executive Branch officials) enjoys absolute immunity for their misconduct, and the government itself is immune from suit because it is the sovereign, what protection can the Bill of Rights possibly offer?